Date: 20170410
Docket: CR 15-01-34736
(Winnipeg Centre)
Indexed as: R. v. Mohamed
Cited as: 2017 MBQB 64
COURT OF QUEEN'S BENCH OF MANITOBA
B E T W E E N:
HER MAJESTY THE QUEEN
)
)
- and )
)
MOWLID KORANE MOHAMED,
)
)
accused. )
)
)
)
)
)
Counsel:
BRENT I. DAVIDSON and
LIBBY L. STANDIL
for the Crown
LISA D. LABOSSIÈRE and
RYAN T. AMY
for the accused
JUDGMENT DELIVERED:
APRIL 10, 2017
CHARTIER J.
INTRODUCTION
[1]
After a trial by jury, Mowlid Mohamed was found guilty of second degree
murder in the death of Joshua Bentley, and guilty of attempted murder of Cory
Nygaard. He was acquitted of a charge of obstruction of justice. Pursuant to
s. 745(c) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, the conviction
for second degree murder carries with it a mandatory sentence of life
imprisonment.
The issues before me are the appropriate period of parole
Page: 2
ineligibility on the murder count and the appropriate sentence on the attempted
murder count.
[2]
On the first issue, pursuant to s. 745.4 of the Criminal Code, the trial
judge "may, having regard to the character of the offender, the nature of the
offence and the circumstances surrounding its commission ... substitute for ten
years a number of years of imprisonment (being more than ten but not more
than twenty-five) without eligibility for parole, as the judge deems fit in the
circumstances."
THE FACTS
[3]
January 24, 2013 was a clear, cold night with the wind chill at minus 30,
when 18 year old Joshua Bentley, his 20 year old friend Cory Nygaard and two
other friends had started crossing the Osborne Street bridge on foot. They had
just left a party at 11 Evergreen Place, an apartment complex adjacent to the
southwest corner of the bridge, and were on their way to a fundraising social
which was being held on the other side of the Assiniboine River at the Granite
Curling Club.
[4]
As they were crossing the bridge, the honking of a vehicle's horn caught
their attention. They eventually saw Mr. Mohamed and his friend Anne Ogidan,
who had emerged from a van.
At least some of the members of the group
thought that they were being offered a ride to the social by Mr. Mohamed and
Ms. Ogidan. They recognized them from the party they had just attended at 11
Page: 3
Evergreen Place. Mr. Bentley and Mr. Nygaard turned around and began a light
jog back to meet them.
[5]
Mr. Bentley and Mr. Mohamed approached each other at the southwest
corner of the bridge. Without saying anything Mr. Mohamed placed his left hand
on Mr. Bentley’s right shoulder and with his right hand plunged a knife once into
the stomach and another into the heart of Mr. Bentley. Mr. Bentley succumbed
to his injuries and was pronounced dead within an hour. Mr. Mohamed then
came towards Mr. Nygaard and pushed him with one hand and stabbed him with
the other in the left abdomen just under the ribs. Mr. Nygaard was hospitalized
and released the next day. He subsequently returned to the hospital to have his
wound stapled shut.
[6]
Prior to that day Mr. Mohamed did not know either Mr. Bentley or
Mr. Nygaard and had only met them half an hour earlier at the party where they
spent approximately 45 minutes together without any noteworthy arguments or
disagreements.
[7]
Mr. Mohamed's criminal record as well as five victim impact statements
from members of Mr. Bentley's family were filed as exhibits in these proceedings.
SUBMISSIONS OF THE PARTIES
[8]
The Crown is seeking to have the parole ineligibility raised to 13 years
pursuant to s. 745.4 and is seeking a 10-year concurrent sentence on the charge
of attempted murder. The Crown says Mr. Mohamed has a history of violent
offences.
Page: 4
[9]
The Crown says that I should take into account the fact that there was
also an attempted murder; this matter involved two victims. Mr. Mohamed was
also on probation at the time of the offences, which the Crown submits is
aggravating. As to the nature of the offence the Crown says that Mr. Mohamed
was either responding to some minor interaction at the party at 11 Evergreen
Place, or something more that we will never know about. He was armed with a
knife and no words were exchanged during the assaults.
The Crown says
deterrence and denunciation are the principal considerations. The Crown relied
on the following authorities:

R. v. Shropshire, [1995] 4 S.C.R. 227 (S.C.C.);

R. v. Van Osselaer, 2004 BCCA 3, 181 C.C.C. (3d) 322;

R. v. McKnight (1999), 135 C.C.C. (3d) 41 (Ont. C.A.);

R. v. Ly (1992), 72 C.C.C. (3d) 57 (Man. C.A.).
[10] The defence says that the parole ineligibility should remain at 10 years.
The defence says that I should not find that there was any premeditation here in
that there is evidence that Mr. Mohamed was in a car with two other individuals
who were waiting for someone to arrive. As to the nature of the offence, there
is no egregious post-offence conduct. There is no evidence of any planning or
deliberation and there was no gratuitous violence. The court must be careful not
to raise parole ineligibility simply on the basis that there was a finding of second
degree murder in this case (see R. v. Pandurevic, 2013 ONSC 3323, [2013]
O.J. No. 2610 (QL), at para. 28). The wounding on the attempted murder is at
Page: 5
the lower end and the defence says the attempted murder conviction should be
eight or nine years concurrent. The defence does not agree that the attempted
murder conviction should be considered in determining parole ineligibility. The
defence agrees that I can take into account the recommendation of the jury,
however it should not be given much weight.
The defence relied on the
following authorities:

Pandurevic;

R. v. Stiers, 2010 ONCA 656, [2010] O.J. No. 4242 (QL);

R. v. McLeod, 2003 CarswellOnt 3860, [2003] O.J. No. 3923 (QL);

R. v. Monkman (G.S.) et al., 2010 MBQB 72, 250 Man.R. (2d) 314;

R. v. Bourget (Man. Q.B., January 19, 2017, unreported).
[11] In Monkman, the court raised the parole ineligibility to 12 years and
defence says the circumstances were more aggravating than this case.
ANALYSIS
(a)
Sentence on attempted murder
[12] The sentence on the attempted murder will be nine years concurrent to
the second degree murder.
The injuries sustained were ultimately not
significant, however the stab wound occurred just under the ribs on the left side
of the chest area and came immediately after the fatal stabbing of Joshua
Bentley.
Page: 6
(b)
Applicable legal principles on parole ineligibility
[13] Section 745.4 sets out the factors to be considered in arriving at an
appropriate parole ineligibility date and includes, as stated earlier, the character
of the offender, the nature of the offence and the circumstances surrounding the
commission of the offence. In the leading case of Shropshire, the Supreme
Court directs that a judge is also to take into account the general principles of
sentencing found in s. 718 of the Criminal Code in making his or her
determination on parole ineligibility.
[14] On this latter point, in overturning the British Columbia Court of Appeal
which had found that deterrence had no application in setting parole ineligibility,
the Supreme Court of Canada in Shropshire stated:
23
The only difference in terms of punishment between first and
second degree murder is the duration of parole ineligibility. This clearly
indicates that parole ineligibility is part of the "punishment" and thereby
forms an important element of sentencing policy. As such, it must be
concerned with deterrence, whether general or specific.
The
jurisprudence of this Court is clear that deterrence is a well-established
objective of sentencing policy. In R. v. Lyons, [1987] 2 S.C.R. 309, La
Forest J. held at p. 329:
In a rational system of sentencing, the respective importance of
prevention, deterrence, retribution and rehabilitation will vary
according to the nature of the crime and the circumstances of
the offender. No one would suggest that any of these functional
considerations should be excluded from the legitimate purview
of legislative or judicial decisions regarding sentencing.
Section 744 [s. 745.4] must be concerned with all of the factors cited in
Lyons. ...
24
The exercise of a trial judge's discretion under s. 744 [s. 745.4]
should not be more strictly circumscribed than the sentencing itself. ...
Page: 7
[15] The Supreme Court added that raising parole ineligibility is not unusual,
and stated:
27
... as a general rule, the period of parole ineligibility shall be for
10 years, but this can be ousted by a determination of the trial judge
that, according to the criteria enumerated in s. 744 [s. 745.4], the
offender should wait a longer period before having his suitability to be
released into the general public assessed. To this end, an extension of
the period of parole ineligibility would not be "unusual", although it may
well be that, in the median number of cases, a period of 10 years might
still be awarded.
[16] In rejecting this proposition which had formed part of the basis of the
British Columbia Court of Appeal's opinion below (that a sentencing judge may
substitute a longer period of parole ineligibility only in unusual circumstances),
the Supreme Court explained the parliamentary intent behind s. 745.4:
29
Section 742(b) [s. 745(c)] of the Code provides that a person
sentenced to life imprisonment for second degree murder shall not be
eligible for parole "until he has served at least ten years of his sentence
or such greater number of years, not being more than twenty-five years,
as has been substituted therefor pursuant to section 744 [s. 745.4]". In
permitting a sliding scale of parole ineligibility, Parliament intended to
recognize that, within the category of second degree murder, there will
be a broad range of seriousness reflecting varying degrees of moral
culpability. As a result, the period of parole ineligibility for second degree
murder will run anywhere between a minimum of 10 years and a
maximum of 25, the latter being equal to that prescribed for first degree
murder. ...
...
31
If the objective of s. 744 [s. 745.4] is to give the trial judge an
element of discretion in sentencing to reflect the fact that within second
degree murder there is both a range of seriousness and varying degrees
of moral culpability, then it is incorrect to start from the proposition that
the sentence must be the statutory minimum unless there are unusual
circumstances. ... a preferable approach would be to view the 10-year
period as a minimum contingent on what the "judge deems fit in the
circumstances", the content of this "fitness" being informed by the criteria
listed in s. 744 [s. 745.4]. ... the power to extend the period of parole
ineligibility need not be sparingly used.
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[17] The Manitoba Court of Appeal decision in Ly referred to by the Crown
predates Shropshire and has to be approached with a great deal of caution.
Although the majority opinion of Twaddle J.A. (Scott C.J.M. concurring) is cited
twice in Shropshire, it nonetheless contains several propositions which no
longer reflect the law, including the proposition that the 10-year minimum should
only be increased in exceptional circumstances.
Conversely, some of the
propositions in Lyon J.A.'s dissenting reasons, where he explicitly disagrees with
the majority opinion, are themselves fully in accord with Shropshire.
[18] As for the role of the jury's recommendation, in McKnight, Laskin J.A. for
the majority of the court cited, with approval, the comments of Watt J. (as he
then was) in R. v. Barry, [1991] O.J. No. 2666 (QL), 1991 CarswellOnt 3274
(Ont. Ct. of Justice – General Div.); aff'd [1993] O.J. No. 3955 (QL),
[summarized 22 W.C.B. (2d) 73] (Ont. C.A.):
[55]
... As Watt J. pointed out in R. v. Barry:
It is difficult to gauge with any accuracy the weight which should
be attributed to a jury recommendation regarding parole
ineligibility. In one sense, it might be said to represent the
community view upon the issue. To so hold, however, as it
appears to me, is somewhat to overstate the case. They are
given no guidance on the precedents concerning the appropriate
range. They are simply told the numbers. They are not
required at least to endeavour to achieve unanimity. It is, as it
was in this case, but a brief, somewhat informal exercise, after
they have been earlier told that sentence forms no part of their
responsibility in determining liability, and then thereafter told it
is but a recommendation. They receive no further evidence
concerning, for example, the likelihood of recidivism, future
danger to society or other matters which might logically bear
upon the issue other than what they can recall was given at trial.
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[19] The British Columbia Court of Appeal in Van Osselaer, citing previous
decisions of that court, stated:
[17] The purpose of s. 745.2 of the Code is simply to allow the jurors
to communicate to the judge their view of the seriousness of the murder;
the section does not bring the jury "any further into the [sentencing]
process" ...
(c)
Application of principles to the facts of this case
Character of the offender
[20] Mr. Mohamed was born in 1988 and was 26 at the time of the offences.
He was born in Somalia and left there as a refugee when he was between four
and five years old and remained in a refugee camp in Kenya until he was 10. His
parents were killed in Somalia. He eventually came to Canada with his brother
when he was 10.
Winnipeg.
He originally moved to Toronto and thereafter settled in
He has a grade 10 education.
He has been in a common-law
relationship that began 13 years ago. He has an eight-year-old child from that
relationship and remains in contact with him.
[21] He has a criminal record which include the following convictions:
(i)
March 2, 2005, assault causing bodily harm (sentenced as a
youth);
(ii)
October 7, 2005, assault with a weapon (bear spray) (sentenced as
a youth);
(iii)
June 21, 2007, trafficking in cocaine.
There were two separate
offences, one which included a conviction for possession of a
Page: 10
weapon – a machete; and the other trafficking charge included
unauthorized possession of a prohibited weapon;
(iv)
February 5, 2010, assault;
(v)
March 10, 2011, carrying a concealed weapon – a baton;
(vi)
September 4, 2013, assault for which he received 60 days time
served and 60 days consecutive, followed by one year supervised
probation which included the conditions of keeping the peace,
reporting to Probation Services and attending counselling and
treatment for anger management.
In addition there are nine instances of failures to comply with either,
undertakings, a recognizance or probation orders over this same time period.
Nature and circumstances of the offence
[22] At the time Mr. Mohamed committed these offences he was on probation
as a result of the September 4, 2013 assault conviction. In addition to killing
Mr. Bentley, he also stabbed Mr. Nygaard immediately after, for which he was
convicted of attempted murder, therefore there are two victims. There is no
apparent motive for the murder of Mr. Bentley or the attempted murder of
Mr. Nygaard.
None of the various incidents or comments related by the
witnesses at the trial regarding the relatively brief and intermittent interaction
between Mr. Mohamed and Mr. Bentley and Mr. Nygaard at the party at 11
Evergreen Place provided any explanation or reason for these unprovoked
attacks.
Page: 11
[23] Mr. Mohamed sought out Mr. Bentley and Mr. Nygaard by getting their
attention as they were crossing the bridge and having them return back to the
11 Evergreen Place parking area. Mr. Bentley and Mr. Nygaard had no apparent
concerns in going back to meet Mr. Mohamed and, indeed, there were some
expectations he might offer them a ride.
The combination of Mr. Mohamed
attacking individuals he barely knew, for no apparent reason, and calling back his
completely unsuspecting victims to do so, is highly morally blameworthy.
[24] The fact that a murder is committed in the absence of any apparent
reason is a basis to increase parole ineligibility (see Shropshire, at paras. 37 –
44; R. v. Able, [1993] O.J. No. 1663 (QL) (Ont. C.A.), at para. 9). While it is
true that murder is never justified, murdering for no reason, or a trifling one, is
highly morally blameworthy. In Shropshire, the Supreme Court (at para. 38)
affirmed the analysis of Goldie J.A., dissenting in the court below, who stated
(para. 13):
In my view, in the absence of any explanation, a virtually random,
certainly irrational on the face of it, and senseless taking of a life should
put this behaviour at the upper end, not the lower end of the offence of
second degree murder. ...
[25] The Supreme Court in Shropshire noted the accused had pled guilty and
the court added (paragraph 39):
... I leave for future consideration the question of drawing a negative
inference from the silence of the accused when he or she has pleaded not
guilty and wishes to appeal the conviction. ...
Page: 12
[26] I note, however, that in Able, the Ontario Court of Appeal took into
account the same factor, the lack of an explanation or a reason with respect to a
killing as a relevant consideration, and did so after a trial, and presumably with
the possibility of a further appeal to the Supreme Court. Moreover, there was
evidence led at trial as to the interaction between Mr. Mohamed and Mr. Bentley
and Mr. Nygaard at the party at 11 Evergreen Place. I find that none of those
interactions provide a reason, at least other than merely trifling ones, for
Mr. Mohamed's subsequent stabbing of Mr. Bentley and Mr. Nygaard.
[27] I have also considered the cases submitted by the defence. Although the
cases submitted were helpful, no two cases, of course, are alike. For example, in
the Pandurevic and Stiers cases, neither of the accused had a history of
violence. Monkman is somewhat closer in some respects but quite different
regarding the motive for the incident.
Keyser J. of this court set the parole
ineligibility at 12 years in that case.
Recommendation of the jury
[28] Of the 11 jurors who remained on the jury at the time of the verdict, one
juror had no recommendation to make. Of the 10 remaining jurors who did
make a recommendation, six recommended the period of parole ineligibility be
increased to 15 years and four recommended that parole ineligibility be raised to
13 years. The members of the community who heard the evidence in this trial as
jurors are unanimous in recommending that parole ineligibility should be raised,
although they split on the appropriate number of years.
Page: 13
[29] I have considered Mr. Mohamed's personal circumstances, including his
underprivileged upbringing and his current family circumstances, and also his
age. He is relatively youthful, but he was 26 at the time of the offence, not 18
or 19. He also has a criminal record containing crimes of violence which shows
he has a propensity for violence. I am giving the principle of rehabilitation less
weight.
[30] In my view, the important sentencing principles in this case are
deterrence, retribution and denunciation. The principle of retribution is always
considered in any sentence, given the words in the first part of s. 718 (see M.
(C.A.), [1996] 1 S.C.R. 500 (S.C.C.), at para 78), and s. 718.1 which states that
"[a] sentence must be proportionate to the gravity of the offence and the degree
of responsibility of the offender." It is an important principle in assessing parole
ineligibility given that part of the purpose of the exercise is to ensure that the
sentence imposed fits the degree of moral fault of the offender for the harm
done. As the court said in Shropshire, "within the category of second degree
murder, there will be a broad range of seriousness reflecting varying degrees of
moral culpability" (para. 29).
[31] In M. (C.A.), , the Supreme Court of Canada stated:
79
Retribution, as an objective of sentencing, represents nothing less
than the hallowed principle that criminal punishment, in addition to
advancing utilitarian considerations related to deterrence and
rehabilitation, should also be imposed to sanction the moral culpability of
the offender. In my view, retribution is integrally woven into the existing
principles of sentencing in Canadian law through the fundamental
requirement that a sentence imposed be "just and appropriate" under the
circumstances. ... I submit that it is this same element of "moral
blameworthiness" which animates the determination of the appropriate
Page: 14
quantum of punishment for a convicted offender as a "just
I noted in Martineau in discussing the sentencing
manslaughter under the Code, it is a recognized principle
system that "punishment be meted out with regard to the
blameworthiness of the offender" (p. 647). ...
sanction". As
scheme for
of our justice
level of moral
80
... Retribution in a criminal context, by contrast, represents an
objective, reasoned and measured determination of an appropriate
punishment which properly reflects the moral culpability of the offender,
having regard to the intentional risk-taking of the offender, the
consequential harm caused by the offender, and the normative character
of the offender's conduct. ...
[Underlining in original]
[32] Also in M. (C.A.), the Supreme Court conceptually distinguished
retribution from what it described as its "legitimate sibling", denunciation. In this
regard, the Supreme Court stated:
81
Retribution, as well, should be conceptually distinguished from its
legitimate sibling, denunciation. Retribution requires that a judicial
sentence properly reflect the moral blameworthiness of that particular
offender. The objective of denunciation mandates that a sentence should
also communicate society's condemnation of that particular offender's
conduct. ...
[Underlining in original]
Regarding denunciation, the Supreme Court stated:
81
... In short, a sentence with a denunciatory element represents a
symbolic, collective statement that the offender's conduct should be
punished for encroaching on our society's basic code of values as
enshrined within our substantive criminal law. As Lord Justice Lawton
stated in R. v. Sargeant ...: "society, through the courts, must show its
abhorrence of particular types of crime, and the only way in which the
courts can show this is by the sentences they pass". The relevance of
both retribution and denunciation as goals of sentencing underscores that
our criminal justice system is not simply a vast system of negative
penalties designed to prevent objectively harmful conduct by increasing
the cost the offender must bear in committing an enumerated offence.
Our criminal law is also a system of values. A sentence which expresses
denunciation is simply the means by which these values are
communicated. ...
Page: 15
[33] Mr. Mohamed's actions have seriously transgressed our society's code of
values, in this instance by taking away a fellow citizen's right to life. The murder
of Mr. Bentley was unprovoked, capricious and senseless, making it therefore a
particularly evil act.
[34] I easily agree that parole ineligibility should be raised. The sentence
sought by the Crown is exceedingly fair to Mr. Mohamed. The 13-year period
sought by the Crown is justifiable, but, in my view, is in the low end of a range
that runs from 13 to 15 years, if not more, in the circumstances present in this
case.
I therefore accept the Crown’s submission that the period of parole
ineligibility be raised to 13 years. It should be raised for the following reasons:
(a)
Mr. Bentley was killed for no apparent reason, or for a trifling one.
This raises the moral blameworthiness of the offence and justifies
raising the parole ineligibility;
(b)
There was more than one victim in this incident – Mr. Nygaard was
also stabbed;
(c)
Mr. Mohamed has a criminal record which includes both offences of
violence and offences of possessing weapons;
(d)
Mr. Mohamed was on probation for assault at the time of the killing
of Mr. Bentley.
[35] Considering these factors, the character of the offender, and bearing in
mind the jury recommendation, I find that raising the period of parole ineligibility
to 13 years constitutes a fit sentence.
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[36] There will be a s. 407.05(1)(a) DNA order.
[37] There will also be a s. 109 mandatory weapons prohibition for life.
______________________________ J.